A civil wrong, which is not exclusively a breach of trust or contract, is called tort. Suppose a person brings a civil action against another for tort. In that case, the person has a defence to reduce liability under certain situations. The defences could be general or specific. General defence is available for many wrongs done by a person. In contrast, specific defence is used for specific torts or wrongs. Volenti non-fit injuria is a general defence of consent that can be taken for defamation, trespass, etc. This article will discuss Volenti non-fit injuria in-depth, its meaning, elements, limitations, and applicability.
Meaning of Volenti non-fit injuria
Volenti non-fit injuria is a legal maxim that means “to a willing person, no injury is done.” It means if a person wilfully consents to inflict any harm upon himself, then such person is not entitled to any remedy under the Law of Torts. So, suppose a person gives consent to cause harm to himself, then in such a scenario. In that case, he cannot claim any remedies, and their consent will act as a defence for the defendants. This maxim is based on the principle that harm done voluntarily does not constitute a legal injury and is thus not actionable. Therefore, a person cannot complain of harm that he suffers by exposing himself with his knowledge and free will.
However, giving consent to cause harm should not exceed the consented limit. For example, in a football game, the players consent to undertake some injury while playing. However, this does not restrict the player from suing other players who cause any deliberate harm to them. Chapman Vs Lord Ellesmere, 1932, it was held that if a person consents to publish any defamatory articles against himself, then such person cannot make any action for defamation.
Elements of Volenti Non Fit Injuria
Volenti non-fit injuria should have the following elements –
a) Knowledge of risk involved;
b) Voluntarily agrees to incur risk;
c) Free consent – the consent should not be backed by any pressure or undue influence.
In which case did the defence of Volenti non-fit injuria succeed?
The defence of Volenti non-fit injuria will succeed if the plaintiff voluntarily and freely, with the knowledge of the nature and consequences of the risk, waiving the claim for injury impliedly agreed to take the risk.
Application of Volenti non-fit injuria
The maxim Volenti non-fit injuria applies to the following situations –
1) Any acts done intentionally that would otherwise be tortious (civil wrong).
Example – This maxim protects the defendant under the following circumstances –
- Trespasser – a trespasser who knows that there are spring guns in the woods, though he is not aware of the exact position where it is located, enters the field and gets hurt by coming in contact with a latent wire connected to the spring gun. Here, such a person cannot claim damages as he has voluntarily exposed himself to the mischief. (Ilott Vs. Wilkes, 1820)
However, suppose a trespasser climbs over a wall fearing a stray fowl and gets hurt by a spring gun. In that case, such a person can recover damages from the defendant, as the spring gun was set without notice. (Bird Vs. Holbrook,1828).
- The maxim protects a surgeon who has amputated a limb. This maxim does not depend on the criteria for the validity of a contract, which means anything which is not enforceable because of infancy is protected under this maxim. Therefore, a minor who can decide about the advantages and disadvantages of a treatment recommended by a surgeon can give valid consent. The doctor has to inform the patient about the possible risk involved with the treatment.
- a football player, fencer, or boxer as long as they play fairly in compliance with the rules of the game, they are protected under this maxim; or
- a spectator at a game – a spectator at a game or competition takes the risk of suffering any damage caused by the act of the participants during the game or competition, even though such action may involve an error of judgment or lapse of skill. However, if the participant’s action results from reckless behavior that endangers the spectator’s safety. Then, the spectator can claim damages. (Wooldridge V Sumner, 1962)
2) Where a person consents to undertake risk that causes harm that could be actionable otherwise.
Knowing the risk involved is not a conclusive defence. It should be evident that the risk has been voluntarily undertaken. Hence, a person who voluntarily does an extremely dangerous act cannot complain that wrong has been done, even though it has been tried to make it less dangerous. (South Indian Industrial Ltd. Madras Vs Alamelu Ammal, 1923)
The consent should be freely given, whether express or implied. For example, express consent is given to a doctor before conducting surgery on the patient, and consent is said to have impliedly given in the case of a game spectator.
3) If the servant is solely responsible for the default that caused him injury, then such person cannot claim wrong from the defendant.
For example, in Smith Vs. Baker & Sons, 1891, the plaintiff was employed as a worker by the defendant to drill holes in rocks next to a crane. The stones swung from the crane over the plaintiff’s head. The plaintiff was aware of it. Consequently, a stone fell on the plaintiff from the crane and injured him. Hence, the plaintiff sued the defendant for negligence. However, the defendant can apply the principle of Volenti non-fit injuria.
In Imperial Chemical Industries Vs. Shatwell, 1964, two employees were working carelessly. As a result, one of them got injured. Hence, they cannot claim damages from the employer as they did not use any precautionary measures provided by the employer. Therefore, the employer can apply the principle of Volenti non-fit injuria.
Limitations of Volenti Non Fit Injuria
There are certain limitations on the applicability of the maxim. These are as follows:
1. Consent cannot legalize an unlawful act – for example, duel with a sharp sword, kicking match, or fighting with naked fists. These acts, though unlawful, people give consent to play it. However, while playing these games, the conduct of the people participating must be reasonable.
In Lane Vs. Holloway, 1967, an older man challenged another person to fight with him. During the fight, when the defendant came forward apprehending that he was likely to cause serious harm to the plaintiff, he gave a punch to the defendant’s shoulder who then gave a severe blow with his fist on the plaintiff’s eyes, which resulted in serious injury to the plaintiff with nineteen stitches and an operation. The court had held that the maxim Volenti non-fit injuria would not be applicable, and the plaintiff was entitled to recover compensation from the defendant.
2. Breach of statutory duty – the maxim Volenti non-fit injuria will not be applicable if an action is based on a breach of statutory duty. So, suppose an injury is caused due to an employer’s breach of statutory duty or negligence. In that case, the workman to whom the injury is caused can claim action against the employer. (Wheeler Vs New Merton Board Mills Ltd, 1933)
However, where there is a breach of statutory duty on the part of the employee, who knows about the risk involved, acts negligently, or breaches the statutory duty, which causes injury to them. Then, in such a scenario, the defence of Volenti non-fit injuria is available to the employer. (Imperial Chemical Industries Ltd. Vs. Shatwell, 1964).
3. Exigency – If the plaintiff has consciously or deliberately faced the risk of death or injury due to any exigency caused by the defendant’s misconduct, to rescue another person from the risk of danger that can lead to death or injury, as a family member or as a stranger whom he owes a duty to protect. Then in such a case, the defence of Volenti non-fit injuria does not apply (Haynes Vs. Harwood, 1935).
However, suppose there is no need to take the risk and the person deliberately suffers harm in doing an act. In that case, such a person cannot claim damages (Cutler Vs. United Diaries (London) Ltd. 1933).
4. Negligence – For any acts done negligently, the defence of this maxim will not be extended. In Slater Vs. Clay Cros Co., the plaintiff, walking in the tunnel was hit by the train. Here, the railway company had instructed the engine driver to blow a whistle at the tunnel entrance and drive slowly into the tunnel. However, these instructions were not followed by the engine driver, resulting in the plaintiff’s injury. The court held that the defence of Volenti non-fit injuria could not be applied. Though the plaintiff took the risk of walking through the tunnel, the negligence of the engine driver enhanced the risk.
When dangerous operation on the land was in progress and apparent on the face of it. The owner of the land permits the licensee to enter the land with a reasonable notice about the risk or danger. The licensee was injured by a railway truck shunted along the railway line. Then the licensee cannot claim for injury against the owner (Ashdown Vs. Samuel Williams & Sons Ltd., 1957)
Nevertheless, in cases where the person was given notice at a stage where he had no option to make a choice, then the claim under the maxim cannot be made.
5. The duty to prevent the act of another person – where the person is under a duty to prevent the commission of an act. Suppose a prisoner who is known to have suicidal tendencies commits suicide. At the same time, in police custody, the police could not prevent the commission of suicide by taking reasonable precautions. Therefore, the defence of Volenti non-fit injuria is not applicable (Reeves Vs. Commissioner of Police of the Metropolis, 1998).
6. Injury in rescuing – the defendant’s horses were running on the street with a van attached, and many children were on the street. Seeing this, the police constable on duty rushed to catch the horses. Consequently, the police constable got injured. The court had held that the defence of Volenti non-fit injuria could not be applied, and the police constable could recover damages from the defendant (Haynes Vs. Harwood, 1935).
7. Travelling in a motor car knowing that the driver is drunk – the plaintiff chose to travel with the defendant knowing that he was drunk and there were high chances of accidents. Consequently, the car met with an accident, the driver died, and the plaintiff was injured. The court had held that in extreme cases, the defence of Volenti non-fit injuria could not be applied, and the plaintiff was eligible to recover damages (Dann Vs. Hamilton, 1939).
8. Travelling at own risk – where the plaintiff is aware of the risk and still voluntarily agrees to incur it. In Nettleship Vs. Weston, the plaintiff, was injured by the defendant while he was supervising the defendant’s driving. The car got crashed. Here, the defence of Volenti non-fit injuria is not applicable.
Volenti non-fit injuria is a legal defence, meaning if the sufferer is willing, no injury is done. It means that a person who willingly commits an act against himself cannot complain if he suffers any injury. The defence of the maxim is available where the plaintiff knowing the risk involved, wilfully agrees to suffer injury. Therefore, a player who suffers an injury while playing or if a spectator suffers an injury while watching a match, then such person cannot claim damages as the defence of Volenti Non-Fit Injuria is available to the players. However, there are exceptions to the maxim. Though the maxim Volenti Non-Fit Injuria is a good defence, it is unsuccessful in reality, depending on the facts and circumstances of the case and looking into factors such as negligence and contributory negligence of the plaintiff. The defence of Volenti non-fit injuria will not be applied if the defendant breaches his duty to take care.